Defeat of Proposition 34: California's death penalty battle will continue

By Howard Mintz hmintz@mercurynews.com

Posted:
11/07/2012 04:11:33 PM PST

Updated:
11/07/2012 06:25:32 PM PST

California's first ballot-box attempt in more than three decades to repeal the death penalty may have failed on Tuesday, but it is likely to inflame the debate over the hot-button issue as the state tries once again to kick-start its indisputably clumsy capital punishment system.

With 53 percent of the state's voters rejecting Proposition 34, both sides tried to claim the political high ground on Wednesday -- each anticipating Californians will be asked again in the near future to either abolish the death penalty or, in the case of death penalty supporters, to overhaul the state's legal apparatus to get executions moving more swiftly.

In the meantime, the political feud will take a backstage to the status quo on California's death row, where 726 inmates await execution in a state that has had a moratorium on executions for nearly seven years. Legal challenges to the state's lethal injection method will resume. Death penalty advocates will push the state prison system to adopt a single-drug execution method to short-circuit the court battles. And at least 14 inmates have exhausted their legal appeals, raising the prospect California could have an unprecedented spate of executions if the legal obstacles are removed.

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San Mateo County District Attorney Steve Wagstaffe will try to unclog the system next week, when he'll ask a judge to bypass state and federal court orders halting executions by allowing the state to immediately put condemned killer Robert Fairbank to death with a single lethal drug. California's three-drug procedure has been blocked by the courts for years, but death penalty supporters say California can join other states such as Washington, Arizona and Ohio in using the lone drug option.

"A lot of things slowed down with this initiative on the horizon," said Douglas Berman, an Ohio State University law professor. "The pregnant question going forward in California is, OK, with (Proposition 34) cleared out, do we get a serious progression toward executions and, then, what's the public response to that going to be?"

Death penalty foes may not wait. In their view, the 53-47 percent vote against Proposition 34 showed that California is moving toward abolition, given the fact more than 70 percent of the voters put the law on the books in 1978. While not pinpointing when the issue could return to the ballot, they made it clear Wednesday there could be a repeat campaign -- and this one raised more than $7 million compared to a few hundred thousand Proposition 34 opponents gathered.

"Fifty-three percent is not a mandate for carrying out executions," said Natasha Minsker, Proposition 34's campaign manager.

Law enforcement officials and victims' rights groups disagree. They say the vote shows the public wants executions and that they may push for a ballot measure to streamline the appeals process as soon as 2014.

"The system as it now exists is broken," Wagstaffe said. "But I'm of the belief that it can be fixed because we do have other states that make it happen."

In the wake of Proposition 34's downfall, here is the landscape of California's death penalty situation:

A federal judge has put executions on hold since early 2006 as a result of the lethal injection challenges. And earlier this year, a Marin County judge clamped another hold on executions because the state failed to follow regulations in adopting a new method. The Brown administration has appealed to a state appeals court.

Those two cases are unlikely to be decided at least until well into next year.

Wagstaffe is trying to sidestep those cases by seeking permission to use a single drug option, although San Quentin has not put that option in place. State lawyers have indicated they are exploring the single drug method, but in theory, legal experts say, courts would have to approve. Wagstaffe's gambit is considered a long shot -- a Los Angeles judge rejected the same argument this summer.

Fifteen inmates have lost all their state and federal appeals, giving them no legal recourse if executions resume. California has never had more than a few inmates in this position at one time, having executed just 13 overall since 1978.

How Gov. Jerry Brown and Attorney General Kamala Harris, who've both pledged to enforce the law despite their personal opposition to the death penalty, will proceed is unclear. If executions resume, Brown's role could be crucial because of his clemency power; no governor has granted clemency in California since Ronald Reagan. Brown said Tuesday he voted for Proposition 34.

"Very few states have succeeded in increasing the number of executions (after periods of delay) without creating a pushback of sorts," Berman said

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz